SUNIL KUMAR GARG - (1.) The above mentioned both appeals are being decided by this common judgment as they have been preferred by the accused appellants against the judgment and order dated 7-8-1999 passed by the learned Special Addl. Sessions Judge (Women Atrocities), Sri Ganganagar by which he convicted and sentenced the above named accused appellants and another accused Baljindra Singh (hereinafter referred to as 'the co-accused'), who has not preferred appeal against his conviction, as per the office report, in following manner :-- @@ Name of accused appellants Convicted under section Sentence 1. Satish Kumar 366 read with 120-B, IPC. Five years RI and fine of Rs. 2,000/- and indefault of payment of fine, to further undergo six months RI. 2.Raju Rajendra Singh -do- -do- 3.Boby Sikander Singh -do- -do- 4.Nimma Nirmal Singh Co-accused -do- -do- 5.Baljindra Singh -do- -do- By the same judgement, the learned Special Additional Sessions Judge acquitted the above mentioned four accused appellants and co-accused of the charge under section 363 IPC.
(2.) The facts giving rise to these appeals, in short, are as follows :- On 25-5-1998 PW1 Amandeep Kaur (prosecutrix) lodged a written report Ex. P/ 1 before PW5 Rameshwar Lal Jangid, S. I. of Police Station, Sadar, Sri Ganganagar stating inter-alia that she studies in BA Final in Sahid Bhagat Singh College, Kotkapura (Punjab) and on that day i.e. on 25-5-1998, she appeared in the last paper of the BA Final and after finishing that paper, she proceeded to her house on foot and when she reached the Bus Stand from where she was to pick up Bus for village Lande, at about 12.30 PM suddenly a Maruti Van bearing No. PB05 B.9647 came towards her back side, in which 3-4 persons were sitting and the said Maruti Van stopped just near her and persons, who came out from the Maruti Van, took her and put in the Maruti Van and closed the windows and her face was also gaged by towel by them and thus, they abducted her. It is further stated in the report that out of these persons, one person was Satish Kumar, accused appellant, apart from him, there were three more persons. It is further stated in the report that accused appellant Satish Kumar is a notorious person and he used to tease her and he intended to marry with her forcibly. It is further stated that from the words which they were addressing to each other, she came to know the names of the other persons i.e. Baljindra Singh (co-accused), Nirmal Singh and Raju (accused appellants). When they were taking her, on the way, accused appellant Satish Kumar told her that in case she makes hue and cry, he would kill her. It is further stated that when they entered in, the Rajasthan, one man on motor cycle also met and to see him, Maruti Van was stopped and out of the persons sitting in the Maruti Van, one person came out from the Maruti Van and went with the person, who came on motor cycle. It is further stated that the Maruti Van was stopped near Dhani where accused appellants took bath and that Dhani was situated at Chak 3Y. It is further stated that at that time a police vehicle came from the side of Ganganagar in which one Driver and two more persons in simple dress were there and persons, who were sitting in the Jeep, tried to control the accused appellants and in the meanwhile, a Bus also came there in which many passengers were there and, thereafter, accused appellants were apprehended by them and at that time, accused appellant Satish Kumar scuffled with the driver of the Jeep (PW3 Pal Singh). It is further stated that before the Jeep Driver (PW3 Pal Singh), she stated that accused appellant Satish Kumar has abducted her for the purpose of marrying with her against her Will. On this report, police registered the case and chalked out FIR No. 149/98 Ex. P/2 and started investigation. During investigation, statement Ex. P/11 of PW 1 Amandeep Kaur under section 164 Cr. P. C. was recorded on 27-5-1998 and above named accused appellants and co-accused were arrested and their arrest memo are Ex. P/6 to Ex. P/10. After usual investigation, police submitted challan against accused appellants and co-accused in the Court of Maigstrate and thereafter, the case was committed to the Court of Session. The learned Special Additional Sessions Judge (Women Atrocities), Sri Ganganagar framed charges under sections 363, 366 and 120-B IPC against the accused appellants and co-accused on 23-10-1998 and charges were read over and explained to accused appellants and co-accused, who pleaded not guilty and claimed trial. In support of its case, the prosecution examined as many as five witnesses and got exhibited some documents. Thereafter, statements of accused appellants and co-accused recorded under section 313 Cr. P. C. and the accused appellant Satish Kumar, in his statement recorded under section 313 Cr. P. C., stated as under :- In defence, one witness was produced by the accused persons. The learned Special Additional Sessions, Judge (Women Atrocities), Sri Ganganagar vide his judgement and order dated 7-8-1999 acquitted the accused appellants and co-accused of the charge under section 363 IPC, but convicted each of them for the offence under section 366 read with Section 120-B IPC and sentenced in the manner stated above, holding inter alia :- 1. That on the date of occurrence, PW l Amandeep Kaur was more than 18 years of age. 2. That if identification parade was not held, it does not affect the prosecution case, in as much as, apart from accused appellant Satish Kumar, PW 1 Amandeep Kaur had the opportunity to see other accused persons also for more than 3 hours and thus, in these circumstances, prosecution case is not affected at all for want of identification parade. 3. That involvement of accused appellants and co-accused is found in abducting PW1 Amandeep Kaur. 4. That no case of consent on the part of PW 1 Amandeep Kaur is made out. 5. That prosecution has not been able to prove its case against accused appellants and co-accused for the offence under section 363 IPC, but the prosecution has well proved its case against accused appellants and co-accused for the offence under section 366 read with Section 120-B IPC. Aggrieved from the said judgment and order dated 7-8-1999 passed by the learned Special Additional Sessions Judge (Women Atrocities), Sri Ganganagar, the accused appellants have preferred these appeals.
(3.) In both appeals, the following submissions have been made by the learned counsel for the accused appellants :-- 1. That no case is made out so far as accused appellant Boby @ Sikander Singh is concerned as he was not found in the Maruti van, when PW1 Amandeep Kaur was abducted. 2. That PW 1 Amandeep Kaur was in love with accused appellant Satish Kumar and accused appellants have not abducted her, rather she has eloped with the accused appellant Satish Kumar and thus, it is a case of consent and not a case of forcible abduction. 3. That after the alleged incident, no report has been lodged by the father of PW 1 Amandeep Kaur. Thus, this fact creates doubt on the prosecution story. 4. That in case findings of conviction are being sustained, accused appellants who have remained in jail for sufficient time, may be sentenced to the period already undergone by them. ;